2. PAYMENT. The term of this agreement is month-to-month. Unless you have made other arrangements, Wire2Mobile will charge your credit card as follows: (i) for recurring fees in advance, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, domain name registration, and support fees not included in your plan) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Wire2Mobile’s option. Unless otherwise agreed to, your billing cycle will be pre-paid monthly. Wire2Mobile may suspend all services if our charges to your credit card are rejected for any reason.
2.1 DISABLING OF ACCOUNTS. Accounts will be disabled if payment is not received within 14 days of due date. If your account has been disabled, you may be charged a reconnection fee of up to $50.00 in order to re-enable your account.
2.2 TERMINATION OF ACCOUNTS. If the account is not paid within 30 days of due date, the account will be terminated and all information within the account will be deleted.
3.1 BY CUSTOMER. You may terminate this agreement at any time and for any reason (including for no reason) by providing Wire2Mobile with at least 30 days prior written notice of termination.
3.2 BY WIRE2MOBILE. You agree that, under certain circumstances and without prior notice, the Service may be immediately suspended or terminated by us. Cause for such action shall include, but not be limited to,
b. Requests by law enforcement or other government agencies,
c. A request by you (self-initiated account deletions),
d. Discontinuance or material modification to the Service (or any part thereof),
e. Unexpected technical or security issues or problems,
f. Engagement by you in fraudulent or illegal activities, and/or
g. Nonpayment of any fees owed by you in connection with the Service.
Termination of your Wire2Mobile account includes:
a. Deletion of your website from our system, including all related information, files and content associated with your website;
b. Removal of access to all offerings within the Service;
c. Deletion of your password and all related information, files and content associated with or inside your account (or any part thereof); and
d. Barring of further use of the Service.
Further, you agree that all terminations for cause shall be made in our sole discretion and that Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives shall not be liable to you or any third party for any termination of your account or access to the Service.
In the case that a customer is terminated for violating one or more of the Wire2Mobile Terms of Service, Wire2Mobile reserves the right to deny access to, and/or, destroy customer data stored on the offending server or account. Wire2Mobile may at its own discretion allow access to a terminated account. If Wire2Mobile agrees to provide access to an account which has been terminated due to a Terms of Service violation, the customer will be subject to a one-time charge of $500 or more to cover the cost of hard drives, cloning, processing and shipping.
4. RESPONSIBILITIES OF WIRE2MOBILE.
4.1 AVAILABILITY. Wire2Mobile guarantees Network and Power Infrastructure uptime to be 99%. This guarantee assures that all major routing devices within our network are reachable from the global internet 99% of the time.
Customer acknowledges that from time to time the services may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades, or service malfunctions, and causes beyond Wire2Mobile’s control or which are not reasonably foreseeable by Wire2Mobile, including the interruption or failure of telecommunications or digital transmission links, hostile network attacks, or network congestion or other failures. Wire2Mobile has no responsibility for downtime resulting from a user’s actions.
4.2 EXCLUSIONS. Many possible situations are completely beyond the control of Wire2Mobile, and therefore are not in the scope of this agreement. These situations include, but are not limited to:
• Scheduled Network or Power System Maintenance: occasionally network or power system maintenance will be required. Wire2Mobile will do everything possible to minimize and avoid downtime during this maintenance.
• Hardware Maintenance: on rare occasions, the hardware which hosts your server may need maintenance or replacement. Wire2Mobile will do everything possible to minimize any downtime in these situations.
• Software Maintenance: an important part of managing a web server is keeping the software up to date. If you choose to have Wire2Mobile manage your web server, occasional software updates will be required to address security or performance issues. Usually you will experience little or no downtime in these situations, but we cannot guarantee a specific amount of time in all situations.
• Malicious Attacks: if a third party not associated with Wire2Mobile initiates a “Denial of Service” or other form of disabling attack against your server or major portions of our network, Wire2Mobile will do everything in its power to stop the attack, but cannot guarantee a resolution time.
• cPanel Issues: if you choose to run cPanel on your server, the default install will be configured for automatic updates of cPanel related software. On occasion, one of these automatic updates could adversely affect all or part of the cPanel related software on you server. If you have opted for managed support, Wire2Mobile will do whatever is necessary to fix any cPanel related problems, but cannot guarantee a resolution time.
4.3 DATA RECOVERY. All data is raid protected and it is expected that in the vast majority of hardware failures there will be no interruption or minimal interruption in recovery. In the case that data on the local disks are not recoverable, a re-create will be initiated and a restore from the most recent Wire2Mobile backup started immediately.
4.4 HOW TO REPORT A PROBLEM. The two primary ways to reach us are via phone and email:
• Phone: (510) 629-0035
• E-mail: email@example.com
5. RESPONSIBILITIES OF CUSTOMER.
5.1 LICENSE GRANT. We do not claim ownership of content you submit to be subject to the Service, or content produced as a result of applying the Service. However, by submitting, posting, downloading, displaying, performing, transmitting, providing or otherwise distributing information or other content (“User Content”) to the Service, you grant Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, transmit, edit, translate, reformat, publicly perform and publicly display User Content solely for the purposes of providing the Wire2Mobile Service to which such content was submitted. This license will terminate at the time you or we remove such content from the Service. You agree that Wire2Mobile may publish or otherwise disclose your name in connection with your User Content.
We do not control or proofread User Content and, as such, do not guarantee the accuracy, integrity or quality of such content. Under no circumstances will Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives be liable in any way for any content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise made available via the Service.
You acknowledge that Wire2Mobile may or may not pre-screen User Content, but that we and our designees shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any User Content that is available via the Service. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such content.
5.2 CUSTOMER COVENANT. During the term of this agreement, customer shall not knowingly distribute on their website(s) any User Content that: (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance, or regulation; (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; or (d) is obscene, pornographic, or indecent.
5.3 CONTENT. All services provided by Wire2Mobile are to be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or Local law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, material that jeopardizes national security, or material protected by trade secret or other laws. The subscriber agrees to indemnify and hold harmless Wire2Mobile, its affiliates, officers, directors, employees, consultants, agents, and representatives from any claims resulting from the subscriber’s use of Wire2Mobile’s services which damages the subscriber or any other party.
Examples of prohibited content or links include (but are not limited to):
• IRC Software
• Pirated software
• Hacking sites, programs or archives
• Warez Sites
• Distribution of music files or any other material in which the account holder does not own the copyright.
Wire2Mobile will be the sole arbiter as to what constitutes a violation of this provision. Content that does not meet these standards will be removed without prior notice to the subscriber.
Housing of any of the following files is considered a violation of the terms of service:
• IRC – We currently do not allow IRC, Egg Drops, BNC, or IRC bots to be operated on our servers or network. Files with references to IRC or any likeness thereof are prohibited.
• Proxies – We do not allow proxy servers of any kind, whether for personal or business use. Files with references to any proxy or likeness thereof are prohibited.
• Port Scanning – We do not allow any kind of port scanning to be done on or from our servers or network.
5.4 COMMERCIAL ADVERTISING – EMAIL. All commercial email marketing companies must adhere to the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003. In addition such companies are prohibited from the sending of bulk mail from “disposable domain names” with whois privacy protection. The following are also prohibited:
• Spamming, i.e. the sending of unsolicited email, from any Wire2Mobile server or any server located on the Wire2Mobile network is STRICTLY prohibited. Wire2Mobile will be the sole arbiter as to what constitutes a violation of this provision. This also includes Opt-in Opt-out mail programs and mail that either directly or indirectly references a domain contained within an account at Wire2Mobile.
• Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by Wire2Mobile customers must be Closed-loop (“Confirmed Opt-in”). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing or selling lists of email addresses from 3rd parties for mailing to or from any third party-hosted domain, or referencing any Wire2Mobile account, is prohibited.
• Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP or the AUP of any other Internet Service Provider, which includes, but is not limited to, the facilitation of the means to send Unsolicited Bulk Email, initiation of pinging, flooding, mail-bombing, text-bombing, unsolicited bulk text messaging or denial of service attacks is prohibited.
• Email address cultivating, or any unauthorized collecting of email addresses without prior notification of the email address owner is strictly prohibited.
• Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org is prohibited.
5.5 SERVER ABUSE. Any attempts to undermine or cause harm to a Wire2Mobile server or subscriber of Wire2Mobile is strictly prohibited including, but not limited to:
• Logging into a server or account that you are not authorized to access.
• Accessing data or taking any action to obtain services not intended for you or your use.
• Attempting to probe, scan or test the vulnerability of any system, subsystem or network.
• Tampering, hacking, modifying, or otherwise corrupting or breaching security or authentication measures without proper authorization.
• Transmitting material that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines or engines with the intent or effect of damaging, destroying, disrupting or otherwise impairing a computer’s functionality or the operation of the System.
• Interfering with, intercepting or expropriating any system, data or information.
• Interfering with service to any user, host or network including, without limitation, by means of overloading, “flooding,” “mailbombing,” or “crashing” any computer system.
You will be held responsible for all actions performed by your account whether it is done by you or by others. All sub-networks of Wire2Mobile and all servers must adhere to the above policies.
6. BANDWIDTH MEASUREMENT AND OVERAGE FEES – INTERNET DATA TRANSFER. When purchasing a Wire2Mobile hosting package your outgoing bandwidth transfer will be used to calculate your bandwidth usage. Incoming data transfer will not be counted towards your bundled bandwidth usage. Incoming data transfer is currently free. If your actual data transfer usage exceeds the amount of the bandwidth included in your package you will be charged a bandwidth overage fee in addition to your regular monthly fee. Currently the bandwidth overage fee is $0.10 per Gig used above what has been allocated per month according to your plan.
6.1 WIRE2MOBILE’S PRIVATE NETWORKING. Wire2Mobile’s private networking allows servers to communicate with each other over an internal, isolated private network. The bandwidth used on the private network is free and does not count against your regular bandwidth usage.
7. SERVER SUPPORT. Basic support and maintenance of dedicated servers is provided at the discretion of Wire2Mobile. In the case of erroneous instances or support issues extending beyond what we determine to be within the realm of reasonable assistance, support is priced as follows:
8. COURTESY SERVICES FOR CUSTOMERS. All services such as backup and Cpanel are provided for the courtesy of the subscriber. It is the sole responsibility of the subscriber to maintain the subscriber’s own backup of any data. Wire2Mobile is not responsible for lost data or for lost data due to third party software that is not maintained by programming staff for the Service. (Cpanel is not associated with Wire2Mobile.)
9. PERFORMANCE WARRANTIES. Wire2Mobile represents, warrants, and covenants that: (a) the Services shall be performed in a competent and professional manner by knowledgeable, trained, and qualified personnel, using sound, professional practices; (b) Wire2Mobile shall use its best efforts to prevent the introduction of computer viruses into the customer’s website and any User Content; and (c) there is no outstanding contract, commitment, or agreement to which Wire2Mobile is a party or legal impediment of any kind known to Wire2Mobile that conflicts with this agreement or that might limit, restrict, or impair the ability of Wire2Mobile to perform this agreement.
11. LIMITED LIABILITY. THE LIABILITY OF WIRE2MOBILE AND ITS SUBSIDIARIES, AFFILIATES (INCLUDING AGENCY ORANGE DESIGN LLC), OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS TO YOU IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL WIRE2MOBILE OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, THE SERVICE, OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY WIRE2MOBILE. THIS INCLUDES: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action.
12. LIMITATION OF DAMAGES. Recovery of damages from Wire2Mobile may not exceed the amount of fees it has collected on the account.